Concept
Intent to Commit a Felony
Common-Law Burglary
Intent to Commit a Felony
The nighttime element asks when the offense happened, and the elements before it ask what the defendant did and to what kind of structure. The last element turns to the defendant's mind: what did the defendant mean to do once inside? At common law, the defendant must intend, at the moment of entry, to commit a felony inside the dwelling.1 This is a specific intent, a mental element required above and beyond whatever mental state accompanies the breaking and entering themselves.2 Older sources give it a Latin name, animus felonicus, the intention to commit a felony.3 North Carolina's law of first-degree burglary has the same structure. As a concurring opinion in State v. Caddell described it, the State must prove that the defendant broke and entered an occupied dwelling with the specific intent to commit the felony alleged in the indictment.4
This element carries the offense because every other element can be present without it. A person who breaks into another's dwelling at night with no plan to commit a crime inside has committed a trespass, but not a burglary. The Maryland court in Warfield v. State drew that boundary from the statutory side. It read two Maryland provisions on breaking and entering a dwelling and other structures as criminal trespass offenses, because they require only a general intent to break and enter and not the specific intent to commit a crime inside. It identified that missing intent as the hallmark of trespass and the feature that separates these offenses from common-law burglary.5 The same purpose explains why the law reaches the entry at all. Under the common law of attempt, a person caught breaking into a dwelling to commit a felony inside often could not be convicted of attempting that felony, because the person had not come close enough to completing it, having perhaps not yet seen any particular property worth taking.6 Burglary closes that gap by making the unlawful entry with a felonious purpose the offense itself, so the law need not wait for the intended felony to begin. Because the offense is built around the danger an occupant faces when an intruder crosses the threshold, the felonious purpose is measured at that moment.
The definition of specific intent sharpens what this element asks. California courts treat a crime as general intent when it requires only an intent to do the act that causes the harm, and as specific intent when the definition refers to an intent to do a further act or bring about a further consequence.7 For burglary, the act is the breaking and entering, and the further objective is the felony inside. The label attaches only to that further purpose, and it says nothing about the mental state required for the other elements. A defendant might think the building was not a dwelling, that it was the defendant's own home, or that it was still daytime, and whether any of those mistakes matters is a separate question.8 The Model Penal Code makes the same point by requiring the prosecution to prove the culpability that the definition demands for each material element separately.9 Critics also doubt that the general/specific distinction is very helpful, which is another reason a court cannot settle those questions by announcing that burglary is a specific intent crime.10 Students lose points when they let the specific-intent label answer questions about the dwelling, ownership, and nighttime elements.
Three questions remain, and the subsections below take them in the order an exam stem raises them. The first is when the intent must exist, since a purpose formed only after the defendant is already inside does not make the entry a burglary.12 The second is whether the intended felony must actually be carried out, and the third is which felonies qualify.
Intent at the Moment of Entry
The felonious purpose that separates burglary from trespass has to exist at one particular instant, the moment the defendant enters the dwelling.13 A defendant who crosses the threshold with no plan to commit a felony inside, and who forms that plan only afterward, has not committed burglary by entering, whatever the defendant goes on to do in the house. The reason lies in what the offense targets. Burglary punishes the invasion of a home by someone who arrives with a criminal purpose, and that invasion happens when the intruder comes through the door, because that is when the occupants are exposed to a person who came to commit a felony. An intruder who carried no such purpose did not bring that danger across the threshold, and the crime committed later inside is punished as the separate offense it is, so nothing goes unpunished by holding the line at the entry. The rule also gives the factfinder one clear point in time to ask about, where otherwise the difference between a trespass and a burglary would turn on whatever the defendant happened to do next.
A short-answer illustration shows where the line falls. Charming breaks into a house at night intending only to leave a malicious warning note, which is not a felony, and after he is inside he decides to steal a painting and does so.14 At the moment he broke and entered he had no intent to commit a felony in the house, and the later intent to steal, although real, arose too late to count. Charming is therefore not guilty of burglary, but he is guilty of larceny for taking the painting. Two facts carry that result: the purpose he held at the door was a prank, and the felonious purpose appeared only after he was already inside. Change the first fact and the answer flips, because had Charming come through the door intending to take the painting, the burglary would have been complete at entry.
The opposite pole appears where the felonious purpose is already formed at the door. In another illustration, D breaks into a house at night intending to shoot and kill its owner, and because D holds that intent at the moment of breaking and entering, D has committed burglary at that instant.15 The intended felony there is murder rather than theft, a point the section on which felonies count develops below. Set the two illustrations side by side and the variable is clear: each defendant enters a dwelling at night, but only D carried a felonious purpose through the door.
The same timing rule appears in a courtroom setting in People v. Sears, a California trial in which the prosecutor repeatedly asserted that the defendant entered a cottage intending to assault his wife, while the defendant testified that he went only to talk and try to reconcile.16 During deliberations the jury asked whether an assault on the wife counted as a felony regardless of what the defendant intended on entering. The judge answered that "the specific intent to commit the assault must exist at the time of entry."17 The jury's question shows the pull the rule resists: once a felony has happened inside, it is tempting to treat the whole episode as a burglary, and the instruction sends the jury back to the doorway to ask what the defendant meant to do when walking in. Sears applied California's statute, which reaches an entry into any structure with intent to commit theft or any felony, so it is not a common-law decision, but the timing instruction is the same one the common-law element requires.
Because intent is a state of mind, the intent held at entry is usually proved through circumstances rather than confession. Texas, for example, treats a nighttime breaking and entering of a house as raising a presumption that it was done with intent to steal, and a Texas court extended the same presumption to an attempted nighttime entry, though that is a state evidentiary rule and not an element of the common-law offense.18 Conduct after the entry can serve the same evidentiary function. In his dissent in Benton v. Maryland, a case that itself concerned double jeopardy, Justice Harlan observed that evidence that the defendant had entered a locked house at night and made off with several appliances was relevant to the Maryland burglary count, because it tended to show that he intended to steal.19 Those inferences go to what the defendant intended at the doorway, and they do not replace the requirement. What separates facts like Benton's from Charming's is that a later taking can be evidence that the purpose existed before the entry, while the facts of Charming's illustration establish that the purpose to steal arose only afterward.
On an exam, the trap is the defendant who commits a serious crime inside the dwelling and invites the reader to work backward from it. Students lose this element when they treat a decision to steal or assault made after the defendant is already inside as if it were the intent that the entry required.20 The stem will usually say when the idea arose, and that sentence is the one to build the analysis around.
Completion Not Required
The timing rule fixes the instant at which the felonious purpose must exist. A separate question is whether the defendant must ever carry that purpose out, and the answer is no. The law requires an intent to commit a felony inside the dwelling at the moment of entry, and it does not require that the defendant actually complete the felony.22 Burglary is therefore finished at the threshold. Whatever happens afterward, whether the defendant takes the property, is interrupted, loses nerve, or finds nothing worth taking, bears on which other crimes were committed and has no bearing on whether this one was.
The reason follows from the harm the offense targets. Burglary punishes the dangerous intrusion made with a criminal purpose, and that danger arrives when the intruder crosses into the dwelling, because from that moment the occupants are exposed to someone who came to commit a felony. If the offense required completion, liability would depend on events that have nothing to do with the danger the entry created. A defendant surprised by a light coming on, frightened off by a siren, or moved to change his mind at the sight of a sleeping occupant would escape liability for the intrusion itself, even though the occupants faced the same danger as if the plan had succeeded. A completion requirement would also reward the defendants whose plans failed, which is the reverse of what a statute aimed at the intrusion should do.
The short-answer illustration of Jessie shows the rule at work. Jessie breaks into and enters J.P.'s premises at night intending to commit larceny, and he never carries the larceny out.23 He is guilty of burglary anyway, because once he broke and entered at night with that intent the crime was already complete. Nothing he failed to do afterward could undo an offense that was finished when he came through the door, and his unfinished larceny is simply the felony he intended and did not complete.
Set Jessie beside D and the variable is plain. Jessie completed nothing and is guilty of burglary, while D completed a theft and is not. Completion is therefore not necessary to burglary, because Jessie's unfinished plan was enough, and it is not sufficient either, because D's finished crime could not supply the intent that was missing at the door. The only fact that decides the result is the defendant's purpose at entry, which is why the timing rule from the previous subsection and this one work together. On an exam, a stem in which the defendant flees empty-handed invites the conclusion that no burglary occurred, and a stem in which a theft is completed invites the opposite conclusion. Students lose this element when they let whether anything was actually taken answer a question that only the intent at entry can answer.24
Which Felonies Count
The earlier subsections fixed when the felonious purpose must exist and showed that the defendant never has to carry it out. What remains is the content of that purpose, meaning which intended crimes turn an unlawful entry into a burglary. At common law the intended crime may be any felony inside the dwelling, and the definition names no particular kind of offense.26 The usual burglar comes to steal, which is why it is tempting to treat burglary as a theft crime, but the element is wider: an intent to commit larceny qualifies, and so does an intent to kill or to commit another violent felony.27 The reason lies in the danger the offense targets. Burglary reaches the intruder who crosses into a place where people live carrying a criminal purpose toward them or their property, and courts applying California's burglary statute describe its aim as forestalling dangerous confrontations between intruders and occupants, an aim that holds whatever the intruder planned to do once inside.28 An intruder who has come to kill creates a graver confrontation than one who has come to take a television, so a rule limited to theft would leave the most dangerous intruders outside the very offense meant to reach them.
The murder illustration shows the principle at its clearest. D breaks into a house at night intending to shoot and kill its owner, and at the moment of breaking and entering D has committed burglary, because the intended murder is a felony to be committed inside the dwelling.29 Property plays no part in that analysis. The felony requirement asks only whether the purpose at the door was serious enough to count, and a purpose to kill plainly is. The burglary is also complete at the threshold under the completion rule from the previous subsection, so a killing that follows is a further crime punished on its own terms and is not needed to establish the burglary.
The felony requirement also marks the lower boundary of the element. An intent to commit only a misdemeanor will not do, and the common-law definition says so in terms.30 The same boundary excludes the defendant who meant to commit nothing worse than a simple trespass, who is not guilty of burglary.31 The line follows from the offense's design. The felonious purpose is the ingredient that lifts a trespassory entry into burglary, so a purpose that is itself minor leaves nothing to do the lifting. The history points the same way: felonies at common law were limited in number and could be punished by death, and burglary itself once carried the death penalty.32
A second limit comes from the other direction, because the purpose at the door must be to commit an actual crime. A defendant who enters intending to recover property that the defendant genuinely believes is his own lacks the intent to commit a crime inside, even if the belief is mistaken.33 The inquiry looks at the defendant's state of mind and not at who holds title, for the same reason the whole element looks at purpose: the felonious intent is what separates a burglar from a trespasser, and a person who believes the property is his own has no wrongful design on anyone's property or person to supply it. A defendant who breaks into a house at night to take a bicycle that the defendant believes, even mistakenly, belongs to the defendant has therefore not entered with intent to commit a crime inside.34 The break-in may still be punished as the trespass it is, but nothing elevates it to burglary.
Modern statutes loosen the common-law boundary in ways that matter once the jurisdiction is identified. Many ask only for an intent to commit a crime, not necessarily a felony, and the category of felonies itself has grown to cover any offense punishable by more than a year in prison.35 The Minnesota statute applied in State v. Colvin, for example, requires the state to prove that the defendant intended to commit some independent crime other than trespass.36 California's statute reaches entry with intent to commit theft or any felony, and because the Legislature's 1927 theft consolidation directs that the word larceny be read as theft, courts there treat an intent to commit theft by false pretenses, such as entering a home meaning to pay with a bad check, as enough.37 Those are statutory rules that apply only where the jurisdiction has adopted them. Absent a stated jurisdiction, the common-law requirement of an intended felony governs, and the later section on modern statutory departures returns to these changes.
A brief California note shows how the breadth of intended felonies can matter outside burglary itself. Because an intent to commit an assault with a deadly weapon can supply the felonious purpose, a prosecutor whose defendant killed someone inside a home may try to treat the burglary as the underlying felony for first degree felony murder, and in People v. Sears the prosecutor pressed that theory by stressing that burglary covers entry with intent to commit any felony, not merely theft.38 Relying on its earlier reasoning, the California Supreme Court reversed the murder convictions, explaining that where the only felonious purpose behind the entry is an assault with a deadly weapon, and the assault is an integral part of the homicide, the burglary cannot support a felony-murder instruction.39 That limit belongs to the law of felony murder. It restricts what the burglary can be used for in a homicide prosecution and does not change what intent the burglary element requires.
On an exam, the stem usually names the intended crime in a single clause, and the task is to classify it. An intended killing or other violent felony supplies the element, and so does an intended larceny; an intended simple battery or a bare trespass does not; and an intended taking of property the defendant honestly believes is the defendant's own is no crime at all. Students lose this element when they equate burglary with an intent to steal and conclude that a defendant who came to kill has committed only a trespass.40